ZHANG XIUHONG v. LIU WENCHEN AND OTHERS

HCA 2118/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2118 OF 2012

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D E C I S I O N

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1.  This is the 5^th to 7^th defendants’ application for leave to appeal against the judgment of this court dated 14 November 2016 (“the Judgment”). The proposed grounds of appeal are set out in the draft Notice of Appeal attached to the Summons dated 28 November 2016.

2.  Leave to appeal will be granted only if the applicant can show that there is reasonable prospect of success.  This involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, but without having to be “probable”.

3.  In the Judgment, this court exercised its discretion to grant the plaintiff leave to amend.  In an appropriate case, the Court of Appeal can overturn such an exercise of discretion.  This can be done if the decision below was plainly wrong, or based on a misapprehension of the facts, or fail to take into account relevant matters, or took into account irrelevant matters.

4.  The 5^th to 7^th defendants are essentially contending that the email correspondence relied on by the plaintiff is not sufficient to sustain an inference of fraud.  In other words, they are challenging this court’s assessment of the evidence.

5.  However, in paragraphs 37 to 42 of the Judgment, this court has analysed the email correspondence, before coming to the conclusion that this is not a case where the proposed amendments have no prospect of success.  Rather, the dispute must be resolved at trial, the proper inference to be drawn from the email is a matter for trial. 

6.  As to the pleas in paragraph 87 of the Amended Statement of Claim about financing cost and other expenses, the level of precision required in pleading a particular head of damage is determined by the need to provide a fair and sufficient indication of the case that is being brought and that the opposing party has to meet (see: McGregor on Damages, 19^th edition, at paragraph 3-005 on page 25).

7.  In my view, there is no sufficient basis for the 5^th to 7^th defendants to invite the appellate court to disturb this court’s ruling at paragraph 47 of the Judgment that the level of precision of the plea is already sufficient. Further details of such losses are a matter of evidence. As pointed out by this court at paragraph 47 of the Judgment, whether the plaintiff can prove such loss is of course a matter for trial.

8.  For the reasons stated above, I am not satisfied that the 5^th to 7^th defendants have reasonable prospect of success in their proposed appeal against the Judgment.  Application for leave to appeal is accordingly dismissed.